Repetitious infractions

Can past infractions of an employee which have already been adequately penalized be still used as bases in taking disciplinary action against him if he commits another similar infraction? This is the issue raised by Gardo in his case.

On April 7, 1993 Gardo was hired by a bus company (PRBLI) as bus conductor with a salary of P510 per trip. On April 8, 1994, he was caught by the bus inspector extending a free ride to a police officer. When investigated and told to explain, he said that the police officer supposedly on duty refused to pay the fare. For this infraction, Gardo was relieved from duty and suspended for 30 days. Then on May 3, 1995, Gardo was again caught extending a free ride to a former employee. This time he said that the employee misrepresented himself to be a current employee by virtue of a company ID he presented to him, so he gave him a free ride. Nevertheless for such infraction he was again suspended.

On October 7, 2001, however, while on duty en route from Manila to Pangasinan, Gardo was again caught by PRBLI’s field inspector extending a free ride to the wife of a co-employee, a driver of PRBLI who under company rules must first obtain a pass. Upon order of the inspector, the wife was immediately issued a passenger ticket for which she paid P50.

On October 9, 2001, Gardo was preventively suspended and was directed to appear in an administrative investigation. At the hearing, Gardo explained that he gave a free ride to the wife because of gratitude to her who assisted him in his financial troubles. He admitted that what he had done was a grave offense and was ready to accept whatever suspension the company may impose. But this time instead of merely suspending him, PRBLI terminated his employment for committing a serious irregularity for the third time.

Gardo questioned his dismissal as illegal in a complaint filed with the NLRC. He argued that the penalty of dismissal is grossly disproportionate to the infraction he committed because his act of extending a free ride was not deliberate and was done on a wrong assumption that immediate family members of company employees are entitled to free rides. He insisted that his previous two offenses of not issuing fare tickets to a police officer and a former company employee cannot be used as bases for his termination considering that his actuations for the latter offenses were justified under the circumstances and that he was already penalized for all these past violations. He said that his last infraction merits only a 30-day suspension.

And the Labor Arbiter (LA) agreed with him. In a decision dated July 2, 2003, the LA declared that Gardo was illegally dismissed. The LA opined that Gardo’s actuations merited a less punitive penalty such as suspension for 30 days which he already served during his preventive suspension. So it ordered Gardo’s reinstatement without loss of seniority rights, payment of back wages, 13th month pay and refund of the bond. Was the LA correct?

No. Gardo was aware that the infraction he committed constituted a grave offense but he still insisted in committing the same out of gratitude to the passenger. There was deliberate intent on his part to commit the violation in order to repay a personal debt at the expense of the company. He chose to violate company rules for his benefit without regard to his responsibilities to the company. If not for the inspector who discovered the incident, the company would have been defrauded by the amount of the fare.

Gardo ought to have known better than to repeat the same violation as he is presumed to be thoroughly acquainted with the prohibitions and restrictions against extending free rides. As a bus conductor, whose duties primarily include the collection of transportation fares, which is the lifeblood of PRBLI, he should have exercised the required diligence in the performance thereof. So his habitual failure to exercise the same is not trivial and cannot be taken for granted.

Although Gardo already suffered the corresponding penalties for his past misconduct, those infractions are still relevant in assessing his liability in the present violation for the purpose of determining the appropriate penalty. To sustain Gardo’s argument that past violation should not be considered is to disregard the warning previously issued to him. His position is imbued with trust and confidence because it involves handling money and failure to collect the proper fare from the riding public constitutes a grave offense which justifies dismissal (Mapili vs. Philippine Rabbit etc., G.R. 172506, July 27, 2011).

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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